Fish law-Having fish in possession during close season. MR. M. GALLAGHER, St. James, Mich. : ATTORNEY GENERAL'S OFFICE, 1} October 4, 1898. MY DEAR SIR-Replying to your letter of recent date relative to your having fish in possession during the close season, I desire to say that the possession of fish during the close season, the catching or taking of which is prohibited by law, would be prima facie evidence of guilt, and would make the person in whose possession they were found liable to prosecution. Yours respectfully, FRED A. MAYNARD, Attorney General. Village president - Authority of, to remove marshal, when. ATTORNEY GENERAL'S OFFICE, E. B. STEBBINS, ESQ., Village President, Lakeview, Mich.: MY DEAR SIR--I am in receipt of your letter of 4, inst., relative to your authority, as persident of the village, to remove the marshal of said village, for what you consider gross neglect of duty. From such examination as I have been able to give the charter for villages-being act No. 3, Public Acts of 1895, I must say that your authority in the premises is somewhat in doubt. Section 2 of chapter 2 of said act provides for the appointment of a marshal by the president, by and with the consent of the council. Subdivision 25 of section 1, chapter VII, in defining the powers of the council, provides that the common council shall see that the several officers of the village perform their duties faithfully, and that proper measures are taken to punish neglect of duty on the part of any such officer. While section 3 of chapter 4 provides that the president may remove any officer appointed by him. at any time when he shall deem it for the public interest, etc., yet it is rather difficult for me to say just how the courts would construe this section. If it is meant that such officers as are appointed by the president by and with the advice and consent of the council, can be removed by the president at will, when he deems it to be in the interest of the public, then there can be no question of your authority in this case; but, if this section is construed to mean that such authority is only vested in you so far as appointments which do not require the confirmation of the council, then you can readily see that you would not have authority to remove the marshal, under the circumstances stated. It would seem reasonable, however, in view of the fact that the appointment of a marshal must be confirmed by the council, that the village council should have something to say with reference to his removal. I do not think the act in question, so far as it pertains to matters of this character, is as clear as it should be, and it may be advisable to ask the legislature to amend it at its next regular session. Yours respectfully, FRED A. MAYNARD, Drain Commissioner-Authority to extend time for completion of drain and the spreading of tax therefor. MR. C. H. MINER, Cohoctah, Mich. : ATTORNEY GENERAL'S OFFICE, } MY DEAR SIR-Your letter of 4, inst., relative to the authority of the county drain commissioner to extend the time for the completion of a drain, and the spreading of the tax therefor, received and considered. Section 4 of chapter 4 of Act No. 254 of the Public Acts of 1897 provides that the commissioner shall have power to grant a reasonable extension of time for the completion of any contract, which would cover the contract for the drain. Section 4 of chapter 6 provides as follows: "It shall be the duty of the supervisor to spread on his roll the total amount of all the drain taxes determined upon by the county drain commissioner to be assessed upon the township or city at large by adding to the township or city tax for the year in which the same was assessed and extending said tax in the same column with the general township or city tax. He shall also spread upon said roll, separately, and immediately following the other descriptions, all tracts of parcels of land specified by the county drain commissioner to be assessed for benefits, and shall place opposite each description, in a column marked (giving the name) 'Drain Taxes,' the amount of taxes apportioned thereon, as certified to by him by the township or city clerk: Provided, That no drain taxes shall be so spread unless directed by the board of supervisors, as in case of other township or city taxes." You will therefore see, that after the spreading of the drain tax is ordered by the board of supervisors, it becomes the duty of the supervisor of the township wherein such tax is to be assessed and collected, to spread the same upon his roll, in accordance with the above section, and the supervisor of the township is not exempt from complying with the provisions of the law because some other official may not discharge his duties according to the judgment of some particular individual. Yours respectfully, FRED A. MAYNARD, School district office becomes vacant, when-Assessor failed to give bond. ATTORNEY GENERAL'S OFFICE, October 7, 1898. } MR. O. W. CLARK, Honor, Mich. : MY DEAR SIR-Your letter of recent date relative to failure of the assessor of school district No. 3 of Inland township, Benzie county, to give bond, received and considered. Section 2 of chapter III, of the general school laws of this State, compilation of 1897, provides, among other things, that a school district office shall become vacant whenever the party elected to such office has neglected to file his acceptance of office, or to give or renew any official bond according to law. Section 25 of chapter 3 provides that the assessor shall within ten days after his election or appointment, file a bond in double the amount of money to come into his hands as such assessor during his term of office as near as the same can be ascertained, etc. Applying the law first above quoted, you will see that the failure to file a bond within the time required by law, which is ten days, creates a vacancy in the office, and the board should act accordingly. Yours respectfully, FRED A. MAYNARD, Incompatibility-Justice of the peace holding a position on township board. MR. CLYDE O. GIBBS, Heatherton, Mich. : ATTORNEY GENERAL'S OFFICE, } October 7, 1898. MY DEAR SIR-Your letter of 6, inst., relative to two of your justices of the peace holding positions on the township board, received and considered. The common-law rule in matters of this character is that the acceptance of a second office, the duties of which are incompatible with that of the first, vacates the first office, as a matter of law. I cannot explain the word "incompatibility" better than by quoting from Mechem on Public Officers, Sec., 422, as follows: "This incompatibility which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper, from considerations of public policy, for one person to hold both. It seems to be well settled that the mere physical impossibility of one person's performing the duties of the two offices, as from lack of time or the inability to be in two places at the same moment, is not the incompatibility here referred to. It must be an inconsistency in the functions of the two offices, as judge and clerk of the same court, claimant and auditor, and the like." It would be difficult for me, under the limited facts submitted, to render a final opinion as to the official rights of the two officers in question; but I have given you the rule that applies to cases of this nature, which I trust will be satisfactory. Yours respectfully, FRED A. MAYNARD, School board-Collecting tuition for non-resident pupils. ANDREW PICKARD, ESQ., Shepherd, Mich. : ATTORNEY GENERAL'S OFFICE, MY DEAR SIR-Your letter of 5, inst., received and considered whereby you submit for my consideration certain matters relative to your school board collecting tuition for non-resident pupils, etc. It would be difficult for me to give you a final opinion in this matter without a complete knowledge of all the facts relating thereto, but if you will carefully consider the law which I will refer you to in connection with the facts in the case, I think you will be able to get the information desired. Section 18, chapter III, of the general school laws, provides as follows: "All persons resident of any school district and five years of age shall have an equal right to attend any school therein," etc. Section 19 of the same chapter provides: "The district board may admit to the district school non-resident pupils, and may determine the rates of tuition of such pupils and collect the same, which tuition shall not be greater than fifteen per cent more than the average cost per capita for the number of pupils of school age in the district. Children who are being cared for at county expense shall be admitted to the school in the district whose school house is nearest the county house, on the same terms that other non-resident pupils are admitted. When non-resident pupils (their parents or guardians) pay a school tax in said district, such pupils shall be admitted to the schools of the district, and the amount of such school tax shall be credited on their tuition, a sum not to exceed the amount of such tuition, and they shall only be required to pay tuition for the difference therein.” Persons residing in or making their home in the school district for no other purpose than to enjoy school privileges, and with the intention of removing to their former home after the closing of the school, are not actually residents of the district within the meaning of the statute,-but the question is largely one of intent. Yours respectfully, FRED A. MAYNARD, Drain Commissioner-Course to pursue in laying out drain which runs through land on State list. School law-Members elected to fill vacancy on school board RICHARD L. LEWIS, Prosecuting Attorney, Reed City, Mich.: MY DEAR SIR-Your letter of recent date, received and considered, whereby you submit for my consideration, questions as follows: 1. "What course has the drain commissioner to take in laying out a ditch that runs through land that is on the State list? On whom does he serve notice?" 2. "At a recent school meeting held in Sylvan township one member of the board resigned and the other's term expired. They elected two to fill the places. Both failed to qualify. Do both members hold over?" Chapter III of Act No. 254 of the Public Acts of 1897, which is the drain law in force at this time, will, I think, give you all the information desired on the subject mentioned in your first question. Section 6 of said chapter provides for the service of citations upon the state by leaving or mailing a copy thereof to the state land commissioner and the prosecuting attorney of the county in which such lands are situated. From such examination as I have been able to give the second question, I would say that both places on the school board are vacant. Section 1, chapter III of the general school law, compilation of 1898, provides for the election of members of the school board, and their term of office is designated as three years, and the school laws do not provide that members of the school board shall hold their respective offices until the election and qualification of their successors. Section 2 of the same chapter, provides as follows: "A school district office shall become vacant upon the occurrence of any of the following events: First-The death of the incumbent. Second-His resignation. Third-His removal from office. Fourth-His removal from the district. Fifth-His conviction of any infamous crime. Sixth-His election or appointment being declared void by a compe tent tribunal. Seventh-His neglect to file his acceptance of office, or to give or renew any official bond, according to law." Under these express provisions of the statute, it would seem to me clear that both offices are vacant, and that they should be filled in accordance with section 3 of said chapter III. Yours respectfully, FRED A. MAYNARD, |